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Judgment
R.S. Narula, J.—The Executive Engineer, Narwana Division, in his capacity as Divisional Canal Officer passed an order, dated 26th August, 1965 directing the abolition, i.e., closure of water outlets Nos. RD116725-R, 116975-R and 119230-R, which were situated in or about village Dhamtan, tehsil Narwana, district Sangrur. The Petitioners are owners of about 78 acres of land in that village which was irrigated from outlet No. 119230-R. The Sub-Divisional Canal Officer after hearing objections of all concerned made a recommendation on 25th May, 1965 (copy Annexure ''A'' to the writ petition) to the effect that the existing two outlets Nos. 116725/Right and 119230/Right be abolished and a new outlet at R.D. 115655/Right be sanctioned subject to confirmation by the Divisional Canal Officer. The Divisional Canal Officer directed the closure of all the three outlets and directed the opening of a new outlet at 116975-R, under the remodeling scheme, as stated above.
The above-said order of the Divisional Canal Officer has been impugned in this case by Shri Puran Chand, the learned Counsel for the Petitioners, on two grounds, namely:--
(i) that the Canal authorities have no jurisdiction whatever u/s 30-A or 30-B of the Canal and Drainage Act to cancel or close an existing water outlet in any circumstances whatsoever; and
(ii) that even if it is held that the Canal authorities have such jurisdiction, the impugned orders are liable to be set aside as they have been passed in violation of Section 30-B(1) of the Act inasmuch as the scheme in question for the opening of the new watercourse was not properly published as required by law.
His ancillary grievance under the second heading is that the Petitioners have been refused even a copy of the scheme and the Ohak plan for which they had made an application in writing.
In his written statement, dated 22nd October, 1965, the Divisional Canal Officer, Narwana Division, has sworn, inter alia, as follows:--
The decision of Sub-Divisional Canal Officer and Divisional Canal Officer, Narwana, were announced under the provisions of Sections 30-A and 30-R respectively according to the Gazette Notification, dated 25th April, 1963." No new watercourse has been provided. The decision is aimed to extend irrigation to a big tract of land. The land of the Applicant is not at a higher level and will get the full irrigation facilities. The water level in the channel at the head of the proposed outlet is 748.82 whereas the natural surface level of the land of the Petitioners varies from 741 feet to 743 feet." "The changes proposed are in the interest of irrigation and are-allowed under Sections 30-A and 30-B of the Canal Act. The irrigation of land of the Petitioners will not suffer". "The scheme was properly published as required under the law.
In view of the statements of fact and assurances given in the written statement of the Canal authorities no manifest injustice appears to have been done to the Petitioners by the impugned Orders.
Nor am I inclined to agree that the Canal authorities could not in any circumstances whatsoever direct the closure of an existing outlet. Shri Puran Chand has relied on the judgment of Shamsher Bahadur, J., in Manjit Singh and Ors. v. The Superintending Engineer Upper Bari Doab Circle, Amritsar and Ors. ILR (1964) 2 P&H 1 : 1964 P.L.R. 495, wherein it was held that there was no authority given to the Divisional Canal Officer u/s 20 of the Act to shut or change the existing outlet and the petition was-allowed on that basis. The learned Counsel for the Petitioners urges that Section 20 has been erroneously mentioned in that ease though the entire procedure adopted by the Canal authorities mentioned in that judgment shows that the case had been taken up u/s 30-A of the Act. I am unable to agree with this contention of the learned Counsel. In the very opening sentence of the judgment, the learned Judge has clearly stated that the question raised in the case related to the power of the Canal authorities u/s 20 of the Act. Even the provisions of the section have been quoted in the'' judgment. I, therefore, hold that the above-said judgment of Shamsher Bahadur, J., is no authority for holding that an existing outlet cannot be closed even in accordance with a scheme framed and properly published under Sections 30-A and 30-B of the Act.
Reference was then made by Shri Purah Chand to the judgment of D.K. Mahajan, J., in Kishan Singh and Ors. v. The State of Punjab and Anr. ILR (1965) 1 P&H 564 : 1965 CLJ P&H 39. It would be appropriate to set out a substantial part of that judgment in this case:
In the petition two grievances were made (1) that a decision had been taken to shift the outlet and (ii) that the size of the outlet has to be reduced from 12" � 12" to 6" � 6". In the return filed by the State it is categorically stated that the outlet is not being shifted. Therefore, one of the grievances is no longer there. With regard to the second grievance, it is admitted that the outlet has been reduced in size. There is no specific provision in the Northern India Canal and Drainage Act, 1873, which permits such a course. Possibly action can be taken u/s 30-A of the Act, but there is a regular procedure prescribed in Sections 30-B to 30-D of the Act in this behalf. It is admitted by the counsel for the State, that the procedure prescribed by the aforesaid provisions, has not been followed in this case for the action taken in the matter of reduction of the outlet. Therefore, it is obvious that the reduction of the size of the outlet is without authority of law and is not justified.--
There is no doubt that the learned Judge (Mahajan), J.) did observe that there appeared to be no specific provision in the Act which permitted the reduction in the size of the outlet. But it is significant that the learned Judge took care to mention that such an action could possibly be taken u/s 30-A of the Act. In that case (Kishan Singh''s case) the impugned action had been taken without having resort to the procedure prescribed under Sections 30-B to 30-D of the Act and was, therefore, set aside.
Shri Lachhman Dass Kaushal, the learned Deputy Advocate-General, appearing for the Canal authorities, invites my reference to Section 30-A(1)(d) of the Act which reads as follows:
30-A. (1) Notwithstanding anything contained to the contrary in this Act and subject to the rules prescribed by the State Government in this behalf, the Divisional Canal Officer may, on his own motion or on the application of shareholder, prepare a draft scheme to provide for all or any of the matters, namely:
(a)-----
(b)-----
(c)-----
(d) any other matter which is necessary for the proper maintenance and distribution of supply of water from a watercourse.
Shri Puran Chand states that Clause (d) of Sub-section (1) of Section 30-A relates only to supply of water from a watercourse and does not justify interference with any outlet. I do not think there is any force in this contention. Clause (d) referred to above is wide enough to cover "any other matter" not specified in Clauses (a), (b) and (c) of Sub-section (1) of Section 30-A, which might be considered to be necessary for the proper maintenance and distribution of supply of water. The closure or the opening or the shifting of an existing outlet would certainly be such a matter in appropriate cases. I, therefore, hold that the Divisional Canal Officer has the authority and jurisdiction u/s 30-A(1)(d) of the Act to direct the closure of an existing outlet in appropriate cases in accordance with the detailed procedure set out in Sections 30-B to 30-D of the Act. There is no force in the second contention of the learned Counsel. A vague allegation of the scheme not having been properly published was made in the petition and equally vague reply has been given that the publication was made according to rules. Unless some specific allegation is made against the manner in which the scheme was published it is impossible for the Respondents to give a better reply. This contention cannot, therefore, be allowed to prevail for want of any definite particulars.
No other point has been argued before me in this case.
The writ petition fails and is dismissed but the parties are left to bear their own costs.